Hamburg Rules Scope
The Hague and Hague Visby Rules date back, in their most recent revision to the late 1960s. They are somewhat outdated in the context of modern transportation methods, in particular, multimodal carriage. More modern rules are likely to replace the rules, subject to the ratification by a sufficient number of States in due course.
The Hamburg Rules 1978 have not yet been adopted by most EU States, including Ireland and the UK. They have been adopted by the Czech Republic and Bulgaria. They have not been adopted by the US. There are approximately 35 ratifications, many in Africa. The rules are more onerous on carriers.
The Hamburg Rules apply to all contracts for the carriage of goods by sea between different states,
- if either the port of loading is in a contracting state, the port of discharge or optional port of discharge, that becomes an actual state of discharge, is in a Convention State;
- the bill of lading evidencing the contract is issued in a contracting state; or
- the bill of lading or other documents evidencing the contracts incorporate the rules or the state’s legislation gives effect to them.
The Contractual Carrier and Covered Persons
The contractual carrier, who may be the shipowner or charterer, is subject to the rules. It may be the contractual carrier or the actual carrier. The contractual carrier is responsible for the part performed by another actual carrier.
The carrier may exclude liability for loss or damage incurred while the goods are in the custody of the actual carrier. This is provided that the actual carrier is named and details are given in the contract of carriage of the part to be performed by the actual carrier. Proceedings may be instituted against the actual carrier in a competent court as defined.
The Hamburg rules apply to employees or agents of the carrier (but not independent contractors). The rules apply during the period while the carrier is in charge of the goods from the port of loading, during carriage and to the port of discharge. This may be extended for further periods on either end. A carrier is deemed to be in charge of the goods from the time they are taken over from the shipper.
Presumption of Liability
If it is shown that the loss or damage took place while the goods were in charge of the carrier, the carrier is presumptively liable. This position can be rebutted if it is proved that carrier, his servants or agents took all measures that could reasonably be required to avoid the occurrence and its consequences.
The carrier is liable for loss resulting from loss of or damage to the goods, as well as from delay in delivery, if the occurrence which caused the loss, damage or delay took place while the goods were in his charge, unless the carrier proves that he, his servants or agents took all measures that could reasonably be required to avoid the occurrence and its consequences.
Delay in delivery occurs when the goods have not been delivered at the port of discharge provided for in the contract of carriage by sea within the time expressly agreed upon or, in the absence of such agreement, within the time which it would be reasonable to require of a diligent carrier, having regard to the circumstances of the case.
The person entitled to make a claim for the loss of goods may treat the goods as lost if they have not been delivered as required within 60 consecutive days following the expiry of the time for delivery.
Exemptions from Liability
The exemptions from liability under the Hague Visby Rules are not re-stated. There are some more limited exemptions. The carrier is exempt from liability where reasonable measures to save life or property at sea cause the loss, damage or delay.
Where goods are lost due to fire, the carrier is liable only if the claimant can prove that the fire arose out of the fault or neglect of the carrier, its employees or agents. The carrier is not liable in respect of loss or damage arising from of special risks inherent in the carriage of live animals. If the carrier shows that the damage was caused by this risk and that it has complied with any special instructions given, the onus is on the claimant to prove negligence.
Where fault or neglect on the part of the carrier, his servants or agents combines with another cause to produce loss, damage or delay in delivery the carrier is liable only to the extent that the loss, damage or delay in delivery is attributable to such fault or neglect, provided that the carrier proves the amount of the loss, damage or delay in delivery not attributable thereto.
Scope of Liability and Exemptions
The carrier is not entitled to the benefit of the limitation of liability if it is proved that the loss, damage or delay in delivery resulted from an act or omission of the carrier done with the intent to cause such loss, damage or delay, or recklessly and with knowledge that such loss, damage or delay would probably result.
An employee or agent of the carrier is not entitled to the benefit of the limitation of liability if it is proved that the loss, damage or delay in delivery resulted from an act or omission of such servant or agent, done with the intent to cause such loss, damage or delay, or recklessly and with knowledge that such loss, damage or delay would probably result.
The shipper is not liable for loss sustained by the carrier or the actual carrier, or for damage sustained by the ship, unless such loss or damage was caused by the fault or neglect of the shipper, his servants or agents. Nor is any servant or agent of the shipper liable for such loss or damage unless the loss or damage was caused by fault or neglect on his part.
Deck carriage and cargo is treated in the same way as other cargo. Cargo may be carried on deck either in accordance with the agreement with the shipper, the usage of a particular trade or statutory rule. If goods are carried unauthorised on deck, the carrier may be strictly liable for loss, where this is the sole cause. The carriage on deck contrary to an express agreement is deemed to be an act or omission of the carrier, such as to lose the benefit of the limitation of liability provisions.
Limit on Liability
A package limitation of 835 SDR units of account or 2.5 units of account per kilogram gross rate applies. The rules limit the chosen basis to 25% of the equivalent increase over the Hague Visby Rules. The maximum liability for a delay is equal to two and a half times freight.
Where the delayed goods exceed the total freight in respect of the carriage, the carrier’s total liability may not exceed the maximum limit of loss. The limitation of losses does not apply where the carrier has acted intentionally or negligently.
Where a container, pallet or similar article of transport is used to consolidate goods, the package or other shipping units enumerated in the bill of lading, if issued, or otherwise in any other document evidencing the contract of carriage by sea, as packed in such article of transport are deemed packages or shipping units. Except as aforesaid the goods in such article of transport are deemed one shipping unit.
In cases where the article of transport itself has been lost or damaged, that article of transport, if not owned or otherwise supplied by the carrier, is considered one separate shipping unit.
By agreement between the carrier and the shipper, limits of liability exceeding those provided above may be fixed.
Bill of Lading
When the carrier or the actual carrier takes the goods in his charge, the carrier must, on demand of the shipper, issue to the shipper a bill of lading. The bill of lading may be signed by a person having authority from the carrier. A bill of lading signed by the master of the ship carrying the goods is deemed to have been signed on behalf of the carrier. The signature on the bill of lading may be in handwriting, printed in facsimile, perforated, stamped, in symbols, or made by any other mechanical or electronic means, if no inconsistent with the law of the country where the bill of lading is issued.
The bill of lading is prima facie evidence of the taking over or, where a “shipped” bill of lading is issued, loading, by the carrier of the goods as described in the bill of lading; and Proof to the contrary by the carrier is not admissible if the bill of lading has been transferred to a third party, including a consignee, who in good faith has acted in reliance on the description of the goods therein.
Where a carrier issues a document other than a bill of lading to evidence the receipt of the goods to be carried, such a document is prima facie evidence of the conclusion of the contract of carriage by sea and the taking over by the carrier of the goods as therein described.
Matters to be Included in Bill of Lading
The bill of lading must include, inter alia, the following particulars:
- The general nature of the goods, the leading marks necessary for identification of the goods, an express statement, if applicable, as to the dangerous character of the goods, the number of packages or pieces, and the weight of the goods or their quantity otherwise expressed, all such particulars as furnished by the shipper;
- the apparent condition of the goods;
- the name and principal place of business of the carrier;
- the name of the shipper;
- the consignee if named by the shipper;
- the port of loading under the contract of carriage by sea and the date on which the goods were taken over by the carrier at the port of loading;
- the port of discharge under the contract of carriage by sea;
- the number of originals of the bill of lading, if more than one;
- the place of issuance of the bill of lading;
- the signature of the carrier or a person acting on his behalf;
- the freight to the extent payable by the consignee or other indication that freight is payable by him;
- certain statements
- the date or the period of delivery of the goods at the port of discharge if expressly agreed upon between the parties; and
- any increased limit or limits of liability where agreed
After the goods have been loaded on board, if the shipper so demands, the carrier must issue to the shipper a “shipped” bill of lading which, in addition to the above particulars. This must state that the goods are on board a named ship or ships, and the date or dates of loading.
If the carrier has previously issued to the shipper a bill of lading or other document of title with respect to any of such goods, on request of the carrier, the shipper must surrender such document in exchange for a “shipped” bill of lading.
The carrier may amend any previously issued document in order to meet the shipper’s demand for a “shipped” bill of lading if, as amended, such document includes all the information required to be contained in a “shipped” bill of lading.
Issues Re Content of Bills
If the bill of lading contains particulars concerning the general nature, leading marks, number of packages or pieces, weight or quantity of the goods which the carrier or other person issuing the bill of lading on his behalf knows or has reasonable grounds to suspect do not accurately represent the goods actually taken over or, where a “shipped” bill of lading is issued, loaded, or if he had no reasonable means of checking such particulars, the carrier or such other person must insert in the bill of lading a reservation specifying these inaccuracies, grounds of suspicion or the absence of reasonable means of checking.
If the carrier or other person issuing the bill of lading on his behalf fails to note on the bill of lading the apparent condition of the goods, he is deemed to have noted on the bill of lading that the goods were in apparent good condition.
Notice of loss, damage or delay
Unless notice of loss or damage, specifying the general nature of such loss or damage, is given in writing by the consignee to the carrier not later than the working day after the day when the goods were handed over to the consignee, such handing over is prima facie evidence of the delivery by the carrier of the goods as described in the document of transport or, if no such document has been issued, in good condition.
Where the loss or damage is not apparent, the above provisions apply correspondingly if notice in writing is not given within 15 consecutive days after the day when the goods were handed over to the consignee.
If the state of the goods at the time they were handed over to the consignee has been the subject of a joint survey or inspection by the parties, notice in writing need not be given of loss or damage ascertained during such survey or inspection.
In the case of any actual or apprehended loss or damage the carrier and the consignee must give all reasonable facilities to each other for inspecting and tallying the goods.
No compensation shall be payable for loss resulting from delay in delivery unless a notice has been given in writing to the carrier within 60 consecutive days after the day when the goods were handed over to the consignee.
Unless notice of loss or damage, specifying the general nature of the loss or damage, is given in writing by the carrier or actual carrier to the shipper not later than 90 consecutive days after the occurrence of such loss or damage or after the delivery of the goods, whichever is later, the failure to give such notice is prima facie evidence that the carrier or the actual carrier has sustained no loss or damage due to the fault or neglect of the shipper, his servants or agents.
Limitation of Actions
Any action relating to carriage of goods under the Convention is time-barred if judicial or arbitral proceedings have not been instituted within a period of two years. The limitation period commences on the day on which the carrier has delivered the goods or part thereof or, in cases where no goods have been delivered, on the last day on which the goods should have been delivered.
The person against whom a claim is made may at any time during the running of the limitation period extend that period by a declaration in writing to the claimant. This period may be further extended by another declaration or declarations.
An action for indemnity by a person held liable may be instituted even after the expiration of the limitation period provided for in the preceding paragraphs if instituted within the time allowed by the law of the State where proceedings are instituted. However, the time allowed shall not be less than 90 days commencing from the day when the person instituting such action for indemnity has settled the claim or has been served with process in the action against himself.
In judicial proceedings relating to carriage of goods under the Convention the plaintiff, at his option, may institute an action in a court which, according to the law of the State where the court is situated, is competent and within the jurisdiction of which is situated one of the following places:
- The principal place of business or, in the absence thereof, the habitual residence of the defendant; or
- the place where the contract was made provided that the defendant has there a place of business, branch or agency through which the contract was made; or
- the port of loading or the port of discharge; or
- any additional place designated for that purpose in the contract of carriage by sea.
Notwithstanding the above, an action may be instituted in the courts of any port or place in a Contracting State at which the carrying vessel or any other vessel of the same ownership may have been arrested in accordance with applicable rules of the law of that State and of international law. However, in such a case, at the petition of the defendant, the claimant must remove the action, at his choice, to one of the jurisdictions referred to above for the determination of the claim, but before such removal the defendant must furnish security sufficient to ensure payment of any judgement that may subsequently be awarded to the claimant in the action.
The parties may provide by agreement evidenced in writing that any dispute that may arise relating to carriage of goods under the Convention shall be referred to arbitration.
Where a charter-party contains a provision that disputes arising thereunder shall be referred to arbitration and a bill of lading issued pursuant to the charterparty does not contain a special annotation providing that such provision shall be binding upon the holder of the bill of lading, the carrier may not invoke such provision as against a holder having acquired the bill of lading in good faith.
The arbitration proceedings shall, at the option of the claimant, be instituted at one of the following places:
- a place in a State within whose territory is situated:
- the principal place of business of the defendant or, in the absence thereof, the habitual residence of the defendant; or the place where the contract was made, provided that the defendant has there a place of business, branch or agency through which the contract was made; or
- the port of loading or the port of discharge; or
- any place designated for that purpose in the arbitration clause or agreement.
The arbitrator or arbitration tribunal shall apply the rules of the Convention.
Any stipulation in a contract of carriage by sea, in a bill of lading, or in any other document evidencing the contract of carriage by sea is null and void to the extent that it derogates, directly or indirectly, from the provisions of the Convention. The nullity of such a stipulation does not affect the validity of the other provisions of the contract or document of which it forms a part. A clause assigning benefit of insurance of the goods in favour of the carrier, or any similar clause, is null and void.
A carrier may increase his responsibilities and obligations under the Convention.
Where a bill of lading or any other document evidencing the contract of carriage by sea is issued, it must contain a statement that the carriage is subject to the provisions of the Convention which nullify any stipulation derogating therefrom to the detriment of the shipper or the consignee.
Where the claimant in respect of the goods has incurred loss as a result of a stipulation which is null and void by virtue of this provision or as a result of the omission of the above statement the carrier must pay compensation to the extent required in order to give the claimant compensation in accordance with the provisions of the Convention for any loss of or damage to the goods as well as for delay in delivery. The carrier must, in addition pay compensation for costs incurred by the claimant for the purpose of exercising his right, provided that costs incurred in the action where the foregoing provision is invoked are to be determined in accordance with the law of the State where proceedings are instituted.
References and Sources
Consumer Law Long 2004
The Law of Transport and Road Haulage (1999) Canny
Consumer Law Rights & Regulation Donnelly & White 2014
Commercial Law White 2nd ed 2012
Commercial & Economic Law in Ireland White 2011
Commercial Law Forde 3rd ed 2005
Schmitthoff: The Law and Practice of International Trade 13th ed Carole Murray, David Holloway, Daren Timson-Hunt, Schmitthoffs 2018
Bills of Lading in Export Trade 4th ed Charles Debattista 2018
Arnould’s Law of Marine Insurance and Average 19th ed Jonathan Gilman, Robert Merkin, Claire Blanchard, Mark Templeman 2018
O’May on Marine Insurance 2nd Ed Julian Hill 2018
Shipping Law 3rd ed Sweet & Maxwell Ltd 2018
The UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea 2nd ed Michael Sturley, Tomotaka Fujita, Gertjan van der Ziel 2018
Commercial Maritime Law Edited by: Melis Ozdel 2018
Springer-VerlagScrutton on Charterparties and Bills of Lading 23rd ed: 1st Supplement
Scrutton on Charterparties and Bills of Lading 23rd ed: 1st Supplement (Book & eBook Pack) Scrutton on Charterparties and Bills of Lading 23rd ed: 1st Supplement (Book & eBook Pack)
Bernard Eder, Howard Bennett, Steven Berry, David Foxton, Christopher Smith 2017
The Bill of Lading: Holder Rights and Liabilities The Bill of Lading: Holder Rights and Liabilities
Frank Stevens 2017
Charterparties: Law, Practice and Emerging Legal Issues Edited by: Baris Soyer, Andrew Tettenborn 2017
Shipping and Trade Law 2017
Multimodal Transport Law Michiel Spanjaart 2017
Maritime Law 4th ed Edited by: Yvonne Baatz 2017